arlington san antonio v fcc fifth circuit decision 10-60039-cv0

8/3/2019 Arlington San Antonio v FCC Fifth Circuit Decision 10-60039-CV0

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-60039

CITY OF ARLINGTON, TEXAS; CITY OF SAN ANTONIO, TEXAS,

Petitioners,

v.

FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES OFAMERICA,

Respondents.

On Petitions for Review of an Order of the

Federal Communications Commission

Before DAVIS, PRADO, and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

The City of Arlington, Texas and the City of San Antonio, Texas seek

review of a Declaratory Ruling and subsequent Order on Reconsideration that

the Federal Communications Commission (FCC or Commission) issued in

response to a petition for a declaratory ruling by a trade association of wireless

telephone service providers, CTIAThe Wireless Association (CTIA). In the

proceeding before the FCC, CTIA sought clarification of Sections 253 and

332(c)(7) of the Communications Act of 1934, as amended, regarding local1

United States Court of Appeals

Fifth Circuit

F I L E DJanuary 23, 2012

Lyle W. CayceClerk

47 U.S.C. 253, 332(c)(7).1

Case: 10-60039 Document: 00511733094 Page: 1 Date Filed: 01/23/2012


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No. 10-60039

review of wireless facility siting applications. We deny Arlingtons petition for

review on the merits. We dismiss San Antonios petition for review because we

lack jurisdiction to consider it.

I

As part of the Telecommunications Act of 1996 (TCA or the Act), Congress2

amended the Communications Act of 1934 by adding Section 332(c)(7). That

provision, codified as 47 U.S.C. 332(c)(7), restricts the authority of state and

local governments with respect to decisions regarding the placement and

construction of wireless communications facilities. It provides:

(7) Preservation of local zoning authority

(A) General authority

Except as provided in this paragraph, nothing in this

chapter shall limit or affect the authority of a State or local

government or instrumentality thereof over decisions

regarding the placement, construction, and modification of

personal wireless service facilities.

(B) Limitations

(i) The regulation of the placement, construction, and

modification of personal wireless service facilities by anyState or local government or instrumentality thereof

(I) shall not unreasonably discriminate among

providers of functionally equivalent services; and

(II) shall not prohibit or have the effect of

prohibiting the provision of personal wireless

services.

(ii) A State or local government or instrumentality

thereof shall act on any request for authorization to place,construct, or modify personal wireless service facilities within

a reasonable period of time after the request is duly filed with

such government or instrumentality, taking into account the

nature and scope of such request.

Pub. L. No. 104104, 110 Stat. 56.2

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(iii) Any decision by a State or local government or

instrumentality thereof to deny a request to place, construct,

or modify personal wireless service facilities shall be in

writing and supported by substantial evidence contained in a

written record.

(iv) No State or local government or instrumentality

thereof may regulate the placement, construction, and

modification of personal wireless service facilities on the basis

of the environmental effects of radio frequency emissions to

the extent that such facilities comply with the Commissions

regulations concerning such emissions.

(v) Any person adversely affected by any final action or

failure to act by a State or local government or any

instrumentality thereof that is inconsistent with thissubparagraph may, within 30 days after such action or failure

to act, commence an action in any court of competent

jurisdiction. The court shall hear and decide such action on

an expedited basis. Any person adversely affected by an act

or failure to act by a State or local government or any

instrumentality thereof that is inconsistent with clause (iv)

may petition the Commission for relief.

Section 332(c)(7) seeks to reconcile two competing interestsCongresss

desire to preserve the traditional role of state and local governments inregulating land use and zoning and Congresss interest in encouraging the rapid

development of new telecommunications technologies by removing the ability of

state and local governments to impede the construction and modification of

wireless communications facilities through delay or irrational decisionmaking.3

See City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 115 (2005) (Congress3

enacted the [TCA] to promote competition and higher quality in American telecommunicationsservices and to encourage the rapid deployment of new telecommunications technologies. One

of the means by which it sought to accomplish these goals was reduction of the impediments

imposed by local governments upon the installation of facilities for wireless communications,

such as antenna towers. (internal quotation marks and citations omitted)); T-Mobile Cent.,

LLC v. Unified Govt of Wyandotte Cnty., Kan. City, Kan., 546 F.3d 1299, 1306 (10th Cir. 2008)

(Congress adopted the TCA in order to promote competition and higher quality in

telecommunications services and to encourage the rapid deployment of new

telecommunications technologies. The TCA furthered these goals by reducing the

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Section 332(c)(7)(A), by providing that nothing in this chapter shall limit or

affect the authority of a State or local government or instrumentality thereof

over decisions regarding the placement, construction, and modification of

personal wireless service facilities, acts to protect state and local government

authority. Section 332(c)(7)(B), on the other hand, imposes several substantive

and procedural limitations that subject [state and local governments] to an outer

limit upon their ability to regulate personal wireless services land use issues.4

In 2008, CTIA filed a petition for a declaratory ruling with the FCC in

which it requested that the FCC clarify certain provisions of the

Communications Act of 1934, including several of 332(c)(7)(B)s limitations.

The petition asserted that ambiguities in the statute had allowed local

governments to impede the placement and construction of wireless facilities,

harming consumers access to wireless services. CTIAs petition made four

specific requests.

First, CTIA requested that the FCC provide guidance on what constitutes

a failure to act for purposes of 332(c)(7)(B)(v). The FCC was requested to

clarify the time periods within which a state or locality must act on wirelessfacility siting applications. The petition suggested that the Commission find

that there has been a failure to act if there is no final action within 45 days from

the submission of a wireless facility application and within 75 days from

submission of other wireless siting facility applications.

impediments that local governments could impose to defeat or delay the installation ofwireless communications facilities such as cell phone towers, and by protecting against

irrational or substanceless decisions by local authorities. (internal citations and quotation

marks omitted)).

Sw. Bell Mobile Sys., Inc. v. Todd, 244 F.3d 51, 57 (1st Cir. 2001) (internal quotation4

marks and citations omitted); see also U.S. Cellular Corp. v. City of Wichita Falls, Tex., 364

F.3d 250, 253 (5th Cir. 2004) (observing that 332(c)(7)(B) imposes substantive and procedural

limits on local governments exercise of zoning authority).

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Second, CTIA asked the FCC to find that, in the event no final action was

taken within the suggested 45- and 75-day time periods, the application would

be deemed granted. Alternatively, CTIA proposed that the FCC establish a

presumption that, if a zoning authority could not explain a failure to act within

the time frames, a reviewing court should find a violation of 332(c)(7)(B)(ii) and

issue an injunction granting the underlying application.

Third, CTIA requested that the FCC interpret 332(c)(7)(B)(i), which bars

state and local governments from taking action that would prohibit or have the

effect of prohibiting the provision of personal wireless services. CTIA noted5

that federal courts had split on the question of whether that provision prevented

state and local governments from barring entry of additional wireless service

providers into a given market based solely on the existence of another provider

within that market. CTIA suggested that the FCC declare that the existence6

of one or more other carriers in a given geographic market is not by itself a

sufficient defense against a suit seeking to enforce 332(c)(7)(B)(i)(II).

Fourth and finally, CTIA requested the FCC to declare that the TCA

preempts any ordinance that automatically requires a wireless carrier to seeka variance, regardless of the type and location of the wireless siting proposal.

As support for this request, CTIA pointed to 47 U.S.C. 253, which provides in

pertinent part: No State or local statute or regulation, or other State or local

legal requirement, may prohibit or have the effect of prohibiting the ability of

47 U.S.C. 332(c)(7)(B)(i)(II).5

Compare, e.g., Metheny v. Becker, 352 F.3d 458, 461 n.2 (1st Cir. 2003) (observing that6

in the First Circuit a provider is not precluded from obtaining relief under the Act simply

because some other provider services the gap in question), with AT&T Wireless PCS, Inc. v.

City Council of City of Va. Beach, 155 F.3d 423, 428 (4th Cir. 1998) (concluding that the

statute only applies to blanket prohibitions and general bans or policies, not to individual

zoning decisions).

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any entity to provide any interstate or intrastate telecommunications service.7

The FCC issued a public notice seeking comment on CTIAs petition, and

the record reflects that, in response to the notice, the FCC received dozens of

comments from wireless service providers, local zoning authorities, and other

interested parties. In 2009, the FCC issued the Declaratory Ruling, in which it

granted in part and denied in part CTIAs petition.8

With respect to CTIAs request that the FCC establish time frames in

which state and local governments must act on zoning requests, the FCC

declared that a reasonable period of time for purposes of 332(c)(7)(B)(ii)

presumptively would be 90 days for personal wireless service facility siting

applications requesting collocations and 150 days for all other applications.9 10

The FCC further determined that a lack of decision within these time frames

would constitute a failure to act under 332(c)(7)(B)(v). The FCC stated,11

however, that personal wireless service providers and state or local governments

could, by mutual consent, extend the prescribed time frames. In addition, the12

FCC concluded that, if an applicant submits an incomplete application, the time

it takes for the applicant to respond to a state or local governments request foradditional information would not count toward the 90- or 150-day time frame if

the state or local government notified the applicant that the application was

incomplete within 30 days of receiving the application.13

47 U.S.C. 253(a).7

24 FCC Rcd. 13994 (2009).8

Collocations involve modifications to already existing wireless facilities.9

24 FCC Rcd. 13994 32 (2009).10

Id.11

Id. at 32.12

Id. at 53.13

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The FCC rejected CTIAs proposal that the FCC deem as granted

applications on which final action was not taken within the prescribed time

frames. The FCC observed that 332(c)(7)(B)(v)s provision for a cause of14

action in a court of competent jurisdiction based on a state or local governments

failure to act indicated Congresss intent that courts should have the

responsibility to fashion appropriate case-specific remedies. Accordingly, the15

FCC concluded that, although the 90- and 150-day time frames established by

the Declaratory Ruling were presumptively reasonable, state or local authorities

would have the opportunity in any given case to rebut that presumption in

court.16

Finally, the FCC addressed CTIAs request that the FCC interpret

332(c)(7)(B)(i) and 47 U.S.C. 253. With respect to 332(c)(7)(B)(i), the FCC

determined that a State or local government that denies an application for

personal wireless service facilities siting solely because one or more carriers

serve a given geographic market has engaged in unlawful regulation that

violates 332(c)(7)(B)(i)(II)s prohibition on regulation that prohibits or ha[s]

the effect of prohibiting the provision of personal wireless services. With17

respect to 253, the FCC rejected CTIAs request that the FCC should rely upon

that provision to preempt state laws and local ordinances that require wireless

service providers to obtain a variance before siting facilities. The FCC noted18

that CTIA was not seeking the preemption of any particular ordinance and that

any further consideration of blanket variance ordinances should occur within the

Id. at 39.14

Id.15

Id. at 42.16

Id. at 55.17

Id. at 67.18

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factual context of specific cases.19

Several organizations subsequently filed a petition for reconsideration,

which the FCC ultimately rejected in its Reconsideration Order. After the FCC

issued the Declaratory Ruling, but before it issued the Reconsideration Order,

the City of Arlington filed a petition for review of the Declaratory Ruling in this

court. We issued an order holding Arlingtons petition for review in abeyance

pending the outcome of the above-referenced petition for reconsideration. After

the FCC issued the Reconsideration Order, the City of San Antonio, which had

also intervened in support of Arlingtons petition for review, filed its own petition

seeking review of both the Declaratory Ruling and the Reconsideration Order.

We have also allowed several parties to intervene in support of or in opposition

to the petitions.

II

We first address an issue involving this courts jurisdiction. As we noted

above, this case involves two separate petitions for reviewArlingtons petition

and San Antonios petition. Many of the issues Arlington and San Antonio raise

are the same. Both cities claim (1) the FCC lacked statutory authority toestablish the 90- and 150-day time frames; (2) the FCCs 90- and 150-day time

frames conflict with the language of 332(c)(7)(B)(ii) and (v); (3) the FCCs

actions were arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with the law; and (4) the FCC violated the Administrative Procedure

Act (APA) because its establishment of the 90- and 150-day time frames

constituted a rulemaking subject to the APAs notice-and-comment

requirements.

Each city also raises issues unique to its own petition. Arlington raises a

procedural due process claim. San Antonio presents two additional issues: (1) a

Id.19

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challenge to the FCCs interpretation of 332(c)(7)(B)(i), and (2) a claim that the

FCC failed to comply with the Regulatory Flexibility Act. The FCC contends,20

however, that we lack jurisdiction to consider San Antonios additional

arguments because San Antonio did not timely file its petition for review. Before

we address the merits of the cities arguments, we must address the issue of our

jurisdiction.

A

San Antonio filed its petition for review pursuant to 47 U.S.C. 402(a),

which provides that [a]ny proceeding to enjoin, set aside, annul, or suspend any

order of the Commission . . . shall be brought as provided by and in the manner

prescribed in chapter 158 of Title 28. Chapter 158 of Title 28 grants this court

jurisdiction over all final orders of the Federal Communications Commission

made reviewable by section 402(a) of Title 47. Chapter 158 also states that a21

party seeking review of a final order reviewable under this chapter must file

a petition for review of the order within 60 days after entry of the order. This22

60-day period is jurisdictional and cannot be judicially altered or expanded.23

The FCC issued the Declaratory Ruling on November 18, 2009. Arlingtonfiled its petition for review of the Declaratory Ruling on January 14, 2010,

within the 60-day period set forth in 28 U.S.C. 2344. We have jurisdiction to

consider that petition and the issues Arlington raises. San Antonio, however,

did not file its petition until October 1, 2010, well beyond the expiration of the

60-day period. Nevertheless, San Antonio argues that its petition for review of

5 U.S.C. 601 et seq.20

28 U.S.C. 2342(1).21

Id. at 2344.22

Brazoria Cnty., Tex. v. EEOC, 391 F.3d 685, 688 (5th Cir. 2004) (quoting Texas v.23

United States, 749 F.2d 1144, 1146 (5th Cir. 1985)).

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the Declaratory Ruling is timely because it was filed within 60 days of the FCCs

issuance of the Reconsideration Order.

It is the general rule that filing a petition for reconsideration with the FCC

will toll the 60-day period for filing a petition for review of the agencys action

in this court. As the FCC notes, however, San Antonio did not file a petition24

for reconsideration of the Declaratory Ruling. Rather, other parties affected by

the Declaratory Ruling filed the petition for reconsideration that culminated in

the Reconsideration Order, and San Antonio simply submitted comments in

support of that petition. The issue here, then, is whether a petition for

reconsideration filed by one party to an agency action tolls 2344s 60-day period

for a party that did not file its own petition for reconsideration.

We conclude that a petition for reconsideration filed by one party does not

toll 2344s 60-day period for parties that do not file petitions for

reconsideration. We reach this decision because finality with respect to agency

action is a party-based concept. It is well-established that a petition for25

agency reconsideration by one party does not affect the right of other parties to

seek judicial review. In other words, the petition for reconsideration filed in26

See Sw. Bell Tel. Co. v. FCC, 116 F.3d 593, 596-97 (D.C. Cir. 1997);Bellsouth Corp.24

v. FCC, 17 F.3d 1487, 1489-90 (D.C. Cir. 1994) ([O]nce a party petitions the agency for

reconsideration of an order or any part thereof, the entire order is rendered nonfinal as to that

party.).

Bellsouth Corp., 17 F.3d at 1489 (internal quotation marks and citations omitted);25

see also W. Penn Power Co. v. EPA, 860 F.2d 581, 587 (3d Cir. 1988) ([A]n agency action can

be final for one party and nonfinal for another.); Winter v. ICC, 851 F.2d 1056, 1062 (8th Cir.

1988) ([I]n multi-party proceedings one party may seek judicial review of an agency decisionwhile another party seeks administrative reconsideration, resulting in both tribunals having

jurisdiction. An agency decision may thus be final for one purpose yet nonfinal for another

purpose.).

Cal. Dept of Water Res. v. FERC, 361 F.3d 517, 521 (9th Cir. 2004); see also W. Penn26

Power Co., 860 F.2d at 586 (It is well established, for example, that when two parties are

adversely affected by an agencys action, one can petition for reconsideration before the agency

at the same time that the other seeks judicial redetermination.).

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this case did not affect San Antonios right to file a petition for review in this

court as of the date the FCC issued the Declaratory Ruling, and we would have

been able to exercise jurisdiction over such a petition for review so long as San

Antonio itself did not file a petition for reconsideration. Because there is no

principled way to distinguish between the concept of finality for purposes of

triggering the running of a time limit for appeals and the concept of finality for

the purpose of appellate court jurisdiction, we conclude that San Antonios27

failure to petition for reconsideration of the Declaratory Ruling rendered the

Declaratory Ruling a final agency decision with respect to San Antonio both for

purposes of conferring jurisdiction on this court and for purposes of triggering

2344s time period. San Antonio thus had 60 days from November 18, 2009,

to file a petition for review in this court of the Declaratory Ruling. The city did

not file its petition until October 1, 2010, months after its 60-day period to file

a petition for review had expired, and we lack jurisdiction to consider the

petition insofar as it challenges the Declaratory Ruling.

B

San Antonio also argues we can consider its petition, notwithstanding thefact that it was untimely with respect to the Declaratory Ruling, because the

petition also challenges the FCCs Reconsideration Order. There is no doubt

that San Antonios petition for review is timely insofar as it challenges the FCCs

Reconsideration Order. The Reconsideration Order is not a reviewable order,

however, because it merely denied rehearing of matters decided in the

Declaratory Ruling. It contained no new or additional determinations. San

Antonio did not petition for reconsideration of the Declaratory Ruling, and in

such a situation, San Antonio cannot challenge the rulings in the Declaratory

Order by challenging only the Reconsideration Order. As the Supreme Court

W. Penn Power Co., 860 F.2d at 585-86.27

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explained in ICC v. Brotherhood of Locomotive Engineers: where a party

petitions an agency for reconsideration on the ground of material error, i.e., on

the same record that was before the agency when it rendered its original

decision, an order which merely denies rehearing of . . . [the prior] order is not

itself reviewable. Here, the arguments San Antonio raises in its petition for28

review, and the arguments it submitted in support of the petition for

reconsideration, all were originally presented to the agency during the

proceedings leading up to the issuance of the Declaratory Ruling. Accordingly,

in addition to lacking jurisdiction to review San Antonios petition insofar as it

challenges the Declaratory Ruling, we also lack jurisdiction to consider the

petition as a challenge to the Reconsideration Order.

C

San Antonio maintains that we can consider all of its arguments, even if

we lack jurisdiction over its petition for review, because it intervened in support

of Arlingtons timely petition for review in this court. Our precedent compels us

to disagree. InBrazoria County, Texas v. EEOC, we held that a party could not29

rely on her timely intervention with respect to another partys petition for reviewto raise matters outside the scope of the other partys petition. We arrived at30

this holding because motions to intervene must be filed within 30 days after

filing of the petition for review which itself must be filed within 60 days after31

the agencys final action thus creating a situation in which intervenors can32

482 U.S. 270, 280 (1987) (quoting Microwave Commcns, Inc. v. FCC, 515 F.2d 385,28

387 n.7 (D.C. Cir. 1974)).

391 F.3d 685 (5th Cir. 2004).29

Id. at 688-89.30

See Fed. R. App. P. 15(d).31

28 U.S.C. 2344.32

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request review of issues as late as 90 days after the agencys final action.

Because permitting an intervenor to raise additional issues for review would

contravene 2344s 60-day time period for filing petitions for review, we

observed that intervenors are bound by the issues raised in the petitions for

review. Thus, we generally limit intervenors to raising arguments addressing33

only those issues presented in the petitions for review.34

As discussed above, Arlington has raised five issues. San Antonios

argument that the FCC failed to comply with the Regulatory Flexibility Act and

its challenge to the FCCs interpretation of 332(c)(7)(B)(i) do not relate to those

issues, and we lack jurisdiction to consider them. Accordingly, we will limit our

discussion to only those issues Arlington has raised. We will, however, consider

the arguments of San Antonio and other intervenors that relate to those issues.

III

The cities contend the FCC violated the APA when it established the 90-

and 150-day time frames. The APA identifies three types of agency

proceedingsrulemaking, adjudication, and licensingand prescribes specific

procedures applicable to those proceedings. When an agency engages in35

rulemaking it must, subject to certain statutory exceptions, satisfy the APAs

familiar notice-and-comment requirements. Adjudications, by contrast, are not36

Brazoria Cnty., Tex. , 391 F.3d at 689 (quoting United Gas Pipe Line Co. v. FERC, 82433

F.2d 417, 437 (5th Cir. 1987)).

Id. But see Kan. City S. Indus., Inc. v. ICC, 902 F.2d 423, 434-35 (5th Cir. 1990)34

(exercising jurisdiction over an issue raised by an intervenor when the intervenor filed its

motion for leave to intervene in the proceedings in this Court not only within Rule 15(d)s

thirty-day filing requirement for intervention motions but also within section 2344s sixty-day

filing requirement for petitions for review of ICC orders).

See Sierra Club v. Peterson, 185 F.3d 349, 366 (5th Cir. 1999).35

5 U.S.C. 553.36

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subject to those requirements. The cities argue the FCC violated the APA37

because the time frames constitute new rules subject to the APAs notice-and-

comment requirements for rulemaking and the FCC failed to comply with the

those requirements.

The FCC makes two arguments in response. First, the FCC notes the

Declaratory Ruling was the product of adjudication, not rulemaking, and thus

was not subject to the APAs notice-and-comment requirements. Alternatively,

the FCC suggests that any new rules included in the Declaratory Ruling were

interpretive rules excepted from the notice-and-comment requirements.

A

We first consider whether the 90- and 150-day time frames were not

subject to the APAs notice-and-comment requirements because the Declaratory

Ruling was the product of adjudication rather than rulemaking. It is well-

established that agencies can choose to announce new rules through adjudication

rather than rulemaking. Agencies typically enjoy very broad discretion [in38

deciding] whether to proceed by way of adjudication or rulemaking. The39

notice-and-comment requirements for rulemaking would ordinarily not apply to

Id. at 554; Shell Offshore Inc. v. Babbitt, 238 F.3d 622, 627 (5th Cir. 2001) (There37

is no notice and comment requirement for an agency adjudication.).

See, e.g., NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974) (observing that an38

agency is not precluded from announcing new principles in an adjudicative proceeding);

Mobil Exploration & Producing N. Am., Inc. v. FERC, 881 F.2d 193, 198 (5th Cir. 1989)

(stating that an agency may establish rules of general application in either a statutory

rulemaking procedure or an individual adjudication).

Time Warner Entmt Co., L.P. v. FCC, 240 F.3d 1126, 1141 (D.C. Cir. 2001); see also39

Bell Aerospace Co., 416 U.S. at 294 (observing that the choice between rulemaking and

adjudication lies in the first instance within the Boards discretion); SEC v. Chenery Corp.,

332 U.S. 194, 203 (1947) ([T]he choice made between proceeding by general rule or by

individual, ad hoc litigation is one that lies primarily in the informed discretion of the

administrative agency.); Am. Airlines, Inc. v. Dept of Transp., 202 F.3d 788, 797 (5th Cir.

2000) (Agencies have discretion to choose between adjudication and rulemaking as a means

of setting policy.).

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the FCCs decision to establish the time frames if the FCC exercised its

discretion to issue the Declaratory Ruling pursuant to its adjudicative powers.

We examine two aspects of an agency action when determining whether

an agency action was a rulemaking or an adjudication. First, we consider the

agencys characterization of its own action. Second, we must examine the40

ultimate product of the agency action. Both of these considerations lead us to41

agree with the FCC that the Declaratory Ruling was the result of an

adjudication and not a rulemaking.

First, the FCC itself claims it was engaging in adjudication when it issued

the Declaratory Ruling. As we have previously recognized, we accord

significant deference to an agencys characterization of its own action. This42

deference is not absolute, however. Otherwise, an agency would be able to

escape the APAs notice-and-comment requirements simply by labeling a

rulemaking an adjudication. Whether the FCCs action here constituted an43

adjudication or a rulemaking ultimately turns on the attributes of the

Declaratory Ruling itself.

The Declaratory Ruling is designated as a Declaratory Ruling, and it wasissued pursuant to 47 C.F.R. 1.2. Section 1.2 grants the FCC the power to

issue declaratory orders and is derivative of 554(e) of the APA. Section 554(e)44

Am. Airlines, Inc., 202 F.3d at 797.40

Id.41

Id.42

Cf.Appalachian Power Co. v. EPA, 208 F.3d 1015, 1024 (D.C. Cir. 2000) (It is well43

established that an agency may not escape the notice and comment requirements . . . by

labeling a major substantive legal addition to a rule a mere interpretation.).

47 C.F.R. 1.2(a) (The Commission may, in accordance with section 5(d) of the44

Administrative Procedure Act, on motion or on its own motion issue a declaratory ruling

terminating a controversy or removing uncertainty.); see also Wilson v. A.H. Belo Corp., 87

F.3d 393, 397 n.4 (9th Cir. 1996) (Because 5 U.S.C. 554(e) grants the FCC authority to issue

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provides: The agency, with like effect as in the case of other orders, and in its

sound discretion, may issue a declaratory order to terminate a controversy or

remove uncertainty. Because 554(e) is a subsection of the provision in the

APA governing formal adjudication, we have held that declaratory rulings issued

pursuant to its grant of authority are informal adjudications under the APA.45

We see no reason to treat the Declaratory Ruling differently: it was the product

of adjudication.46

B

Our conclusion that the Declaratory Ruling resulted from adjudication

does not end our review of the FCCs purported non-compliance with the APA.

Although, as noted above, agencies enjoy broad discretion in choosing whether

to establish a rule through adjudication or rulemaking, that discretion is not47

unlimited. The agency ultimately remains subject to the constraints of the APA,

which requires courts to review the agencys action to determine whether it was

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law. The Ninth Circuit, for example, has identified certain situations in which48

declaratory orders, and because 47 C.F.R. 1.2 is derived from 554(e), it appears that the

terms declaratory order and declaratory ruling are used interchangeably.).

See Am. Airlines, Inc., 202 F.3d at 796-98 (treating a declaratory order issued45

pursuant to 554(e) as an informal adjudication); Texas v. United States, 866 F.2d 1546, 1555

(5th Cir. 1989) (same); see also Qwest Servs. Corp. v. FCC, 509 F.3d 531, 536 (D.C. Cir. 2007)

([T]here is no question that a declaratory ruling can be a form of adjudication. (internal

citation omitted)).

See Am. Airlines, Inc., 202 F.3d at 798; Radiofone, Inc. v. FCC, 759 F.2d 936, 93946

(D.C. Cir. 1985) (There is no doubt that the Commissions action in this case was anadjudication and not a rulemaking. It is captioned Declaratory Ruling, a category of action

which, according to the Commissions rules, is taken in accordance with section 5(d) of the

Administrative Procedure Act, 47 C.F.R. 1.2 (1984). That subsection, now codified at 5

U.S.C. 554(e) (1982), pertains to adjudication. (internal footnote omitted)).


5 U.S.C. 706(2)(A).48

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an agencys reliance on adjudication instead of rulemaking constitutes an abuse

of discretion. Even though we conclude the Declaratory Ruling was the product49

of an adjudication, we will consider whether the FCC abused its discretion or

otherwise violated the law by promulgating the 90- and 150-day time frames

through adjudication rather than rulemaking. On this point, we harbor serious50

doubts as to the propriety of the FCCs choice of procedures.

Specifically, we note that the Declaratory Rulings 90- and 150-day time

frames bear all the hallmarks of products of rulemaking, not adjudication.

Adjudications typically resolve disputes among specific individuals in specific

cases, whereas rulemaking affects the rights of broad classes of unspecified

individuals. InAmerican Airlines, Inc. v. Department of Transportation, we51

held that the Department of Transportation properly used 554(e)s declaratory

ruling mechanism to resolve a dispute involving the application of the federal

law governing airline service at Love Field airport. In that case we specifically52

observed that because DOTs order interpreted the rights of a small number of

parties properly before it, DOT did not abuse its discretion by acting through an

See MacLean v. Dept of Homeland Sec., 543 F.3d 1145, 1151 (9th Cir. 2008) (An49

agency adjudication may require a notice and comment period if it constitutes de facto

rulemaking that affects the rights of broad classes of unspecified individuals. (internal

quotation marks and citations omitted)); Miguel-Miguel v. Gonzales, 500 F.3d 941, 950 (9th

Cir. 2007) (Of course, in certain circumstances an agency may abuse its discretion by

announcing new rules through adjudication rather than through rulemaking, such as when

the rule operates retroactively and disturbs settled expectations.).

See Am. Airlines, Inc., 202 F.3d at 798 (reviewing agencys decision to proceed by50

adjudication rather than rulemaking for abuse of discretion); see also NLRB v. Bell AerospaceCo., 416 U.S. 267, 294 (1974) ([T]here may be situations where [an agencys] reliance on

adjudication would amount to an abuse of discretion . . . .).

Yesler Terrace Cmty. Council v. Cisneros, 37 F.3d 442, 448 (9th Cir. 1994); see also51

Providence Yakima Med. Ctr. v. Sebelius , 611 F.3d 1181, 1187-88 (9th Cir. 2010) (per curiam);

San Juan Cable LLC v. P.R. Tel. Co., Inc., 612 F.3d 25, 33 n.3 (1st Cir. 2010).

202 F.3d at 797-98.52

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adjudicatory proceeding.53

Similarly, in Mobil Exploration & Producing North America, Inc. v.

FERC, we reviewed an agencys decision to institute a new one-year time limit54

for successors in interest in gas-producing properties to obtain a new certificate

of public convenience and necessity. The agency instituted the new limit in the55

course of reviewing a particular successors application for a certificate.56

Petitioners challenged the limit on a number of grounds, including that the limit

should have been instituted using the formal rulemaking procedure in the APA,

and we held that the agency did not abuse its discretion in choosing to establish

the limit through adjudication rather than rulemaking. In doing so, we57

specifically noted that the new time limit was a relatively minor procedural

requirement with limited effect due to the fact that there were fewer than 250

large producers that would be subject to the one-year successor filing

requirement. Here, the FCC established the 90- and 150-day time frames, not58

in the course of deciding any specific dispute between a wireless provider and a

state or local government, but in a proceeding focused exclusively on providing

an interpretation of 332(c)(7)(B) that would apply prospectively to every stateand local government in the United States.

It is true that an agency need not be presented with a specific dispute

between two parties in order to use 554(e)s declaratory ruling mechanism,

because 554 does not limit an agencys use of declaratory rulings to

Id. at 798.53

881 F.2d 193 (5th Cir. 1989).54

Id. at 195-96.55

Id. at 196.56

Id. at 198-99.57

Id. at 199.58

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terminating controversies between parties. Section 554 also empowers agencies

to use declaratory rulings to remove uncertainty, and there are cases

suggesting an agency may use a declaratory ruling to issue interpretations of

law that are both general and prospective in their application and divorced from

a specific dispute between parties. In Qwest Services Corp. v. FCC, the District59

of Columbia Circuit upheld the FCCs use of a declaratory ruling to announce

that certain types of prepaid calling cards were telecommunications services and

that their providers were subject to regulation under the TCA. In Chisholm v.60

FCC, the District of Columbia Circuit similarly upheld the FCCs use of a61

declaratory ruling to determine the application of the Communication Acts

equal-time provision to specific types of appearances by political candidates.62

Nevertheless, even these cases involved concrete and narrow questions of law

the resolutions of which would have an immediate and determinable impact on

specific factual scenarios. Here, by contrast, the FCC has provided guidance on

the meaning of 332(c)(7)(B)(ii) and (v) that is utterly divorced from any specific

application of the statute. The time frames effect with respect to any particular

dispute arising under 332(c)(7)(B)(ii) will only become clear after adjudicationof the dispute in a court of competent jurisdiction. This is classic rulemaking.63

Nevertheless, we need not decide whether the FCC abused its discretion

by failing to use notice-and-comment rulemaking to establish the time frames.

We also do not address the FCCs argument that, even if it did engage in

509 F.3d 531 (D.C. Cir. 2007).59

Id. at 536-37.60

538 F.2d 349 (D.C. Cir. 1976).61

Id. at 364-66.62

See Yesler Terrace Cmty. Council v. Cisneros, 37 F.3d 442, 448 (9th Cir. 1994)63

(Rulemaking, in contrast, is prospective, and has a definitive effect on individuals only after

the rule subsequently is applied.).

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The APAs notice-and-comment procedures are familiar:

Under the APA, agencies issuing rules must publish notice of

proposed rulemaking in the Federal Register and shall give

interested persons an opportunity to participate in the rule making

by allowing submission of comments. In addition, the APA requiresthat publication of a substantive rule shall be made not less than 30

days before its effective date.69

When an agency fails to comply with the APAs notice and comment procedures,

the touchstone is whether it is clear that the lack of notice and comment did not

prejudice the petitioner. In this case, there is no indication that any failure70

of the FCC to comply with the APAs notice-and-comment procedures prejudiced

Arlington or the intervenors.As an initial matter, the FCC published notice of CTIAs petition in the

Federal Register, and the notice requested comments on CTIAs request that the

FCC clarify the time period in which a state or local zoning authority will be

deemed to have failed to act on a wireless facility siting application. The71

notice also referenced CTIAs requests that the FCC establish specific time

frames and implement a system under which an application would be deemed

granted if a zoning authority failed to act within the applicable time frame. It72

is true that the FCC labeled its published notice as a request for comment on a

Petition for Declaratory Ruling rather than as a Notice of Proposed

Rulemaking, but, as the District of Columbia Circuit has repeatedly held, such

a deficiency is not fatal because to remand solely because the Commission

Johnson, 632 F.3d at 927 (internal quotation marks and citations omitted); see also69

5 U.S.C. 553(b)-(d).

Johnson, 632 F.3d at 931.70

SeeWireless Telecommunications Bureau seeks Comment on Petition for Declaratory71

Ruling by CTIA, 73 Fed. Reg. 50972, 50972 (Aug. 29, 2008).

Id. at 50972-73.72

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behavior before the final rule takes effect. On this point, the Declaratory75

Ruling itself recognized the need to give State and local governments an

additional period to review currently pending applications before an applicant

might file suit. The FCC determined that, for all zoning applications that had76

been pending for less than 90 days (with respect to collocation applications) or

150 days (with respect to all other applications) at the time of the issuance of the

Declaratory Ruling, state or local governments would have an additional 90- or

150-day period before their inaction would be presumed unreasonable under the

time frames. For those applications that had been pending for longer than the77

applicable time frame at the time of the Declaratory Ruling, the FCC determined

state or local governments would have 60 days from the provision of notice by

the applicant before the applicant would be able to seek judicial relief. The78

cities have not demonstrated that the FCCs approach here burdened them in

any way. Nor have they pointed to zoning applications they were forced to

address earlier due to the FCCs failure to comply with the 30-day waiting

period.

We conclude that any error in the FCCs choice to establish the timeframes in the Declaratory Ruling instead of through notice-and-comment

rulemaking was plainly harmless. The cities received notice of the issues

pending before the FCC and had the ability to comment on CTIAs petition in the

agency proceedings. More than sixty cities, towns, and villages, and scores of

other governmental entities or their representatives submitted comments in

response to the FCCs notice. The FCC considered and addressed all of the

Omnipoint Corp. v. FCC, 78 F.3d 620, 630 (D.C. Cir. 1996).75

24 FCC Rcd. 13994 51 (2009).76

Id.77

Id.78

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substantive issues the cities now raise. Any deficiencies in the procedures

leading to the Declaratory Ruling do not justify vacating and remanding the

order.

IV

The cities also argue the FCC violated due process when it issued the

Declaratory Ruling. The cities base this argument on their assertion that the

FCC failed to comply with 47 C.F.R. 1.1206(a) when it considered CTIAs

petition. A note to that regulation provides:

In the case of petitions for declaratory ruling that seek Commission

preemption of state or local regulatory authority and petitions for

relief under 47 U.S.C. 332(c)(7)(B)(v), the petitioner must serve theoriginal petition on any state or local government, the actions of

which are specifically cited as a basis for requesting preemption.

Service should be made on those bodies within the state or local

governments that are legally authorized to accept service of legal

documents in a civil context. Such pleadings that are not served

will be dismissed without consideration as a defective pleading and

treated as a violation of the ex parte rules unless the Commission

determines that the matter should be entertained by making it part

of the record under 1.1212(d) and the parties are so informed.79

The cities claim CTIA did not serve its petition on the state and local

governments whose delays served as the impetus for CTIAs petition. According

to the cities, CTIAs failure to serve the petition necessitated its dismissal and

the FCCs failure to do so resulted in a denial of due process.

The FCC responds that its decision not to dismiss CTIAs petition was

justified by its own interpretation of 1.1206(a). In the Declaratory Ruling, the

FCC concluded: By its terms, the service requirement does not apply to a

petition that cites examples of the practices of unidentified jurisdictions to

demonstrate the need for a declaratory ruling interpreting provisions of the

47 C.F.R. 1.1206(a) note 1.79

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Communications Act. The FCC notes that CTIAs petition did not identify80

specific municipalities and that nothing in its rules required the petition to do

so.

Reduced to its essence, the cities claim is that the FCC violated due

process by failing to ensure that CTIAs petition was served on the specific state

and local governments whose delays caused CTIA to petition the FCC for the

Declaratory Ruling. We do not believe that due process required such individual

service in this case because the FCC, in issuing the Declaratory Ruling, was not

adjudicating the legality of the actions of those state and local governments. The

FCC was not confronted with a concrete dispute the resolution of which would

have an immediate effect on specific individuals. As noted above, in this sense81

the Declaratory Ruling was more akin to a rulemaking than the typical

adjudication, and we have observed that [w]hen a rule is established through

statutory rulemaking, public notice and hearing provide the necessary

protection. . . . Such notice is provided by publication of the proposed

rulemaking in the Federal Register, and all parties who will be affected by the

rule are given an opportunity to challenge [the agencys] action. Here, the82

FCC provided notice of CTIAs petition in the Federal Register and allowed all

interested parties to provide comments on CTIAs petition. Under the

circumstances of this case, those procedures were adequate to satisfy due

process.

24 FCC Rcd. 13994 68 (2009).80

See Yesler Terrace Cmty. Council v. Cisneros, 37 F.3d 442, 448 (9th Cir. 1994)81

([B]ecause adjudications involve concrete disputes, they have an immediate effect on specific

individuals (those involved in the dispute).).

Mobil Exploration & Producing N. Am., Inc. v. FERC, 881 F.2d 193, 199 (5th Cir.82

1989); see alsoFla. Gas Transmission Co. v. FERC, 876 F.2d 42, 44 (5th Cir. 1989).

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V

Regarding the determinations in the FCCs Declaratory Ruling, we begin

with the cities suggestion that the FCC lacked the statutory authority to adopt

the 90- and 150-day time frames. As noted above, those time frames represent

the FCCs construction of language in 332(c)(7)(B)(ii) and (v). The cities argue,

however, that 332(c)(7)(A) precludes the FCC from exercising authority to

implement that language. The cities also note that 332(c)(7)(B)(v) places

jurisdiction over disputes arising under 332(c)(7)(B)(ii) in the courts and

suggests that this jurisdictional provision supports its proposed reading of

332(c)(7)(A).

The FCC, on the other hand, contends that it possessed statutory

authority to adopt the 90- and 150-day time frames pursuant to its general

authority to make such rules and regulations as may be necessary to carry out

the Communication Acts provisions. The FCC argues that 332(c)(7)(A) does83

not bar the FCC from exercising this authority because the FCC interprets

332(c)(7)(A) as merely precluding the FCC from imposing additional

limitations on state and local government authority over the wireless facilityzoning process beyond those already provided for in 332(c)(7)(B). Under the

FCCs interpretation, the FCC retains the authority to implement the

limitations already set forth in 332(c)(7)(B).

A

We ordinarily review an agencys interpretation of the statutes it is

charged with administering using the Chevron two-step standard of review.84

Under Chevron, we first ask whether Congress has directly addressed the

See, e.g., 47 U.S.C. 151, 154(i), 201(b), 303(r).83

See Am. Airlines, Inc. v. Dept of Transp., 202 F.3d 788, 796 (5th Cir. 2000).84

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precise question at issue. If Congress has addressed the question, we must85

give effect to the unambiguously expressed intent of Congress. If we86

determine that the statute is silent or ambiguous with respect to the precise

question at issue, however, we then consider whether the agencys answer is

based on a permissible construction of the statute. As long as the agencys87

construction of an ambiguous statute is permissible, it must be upheld.88

Although we engage in the Chevron analysis when reviewing an agencys

interpretation of a statute it is charged with administering, we do not use

Chevron when reviewing an agencys interpretation of a statute it is not charged

with administering.89

The issue in the instant case is whether the FCC possessed statutory

authority to administer 332(c)(7)(B)(ii) and (v) by adopting the 90- and 150-day

time frames. Although it is clear that Chevron review does not apply once it is

determined that an agency lacks authority to interpret a statute, the parties

dispute whether Chevron review should apply when we determine the extent of

the agencys jurisdiction. The FCC argues that an agencys interpretation of its

own statutory authority is subject to review under Chevron. The cities, on theother hand, argue the issue presents a pre-Chevron question of law regarding

the scope of the FCCs authority and that such a question of law is subject to de

Mayo Found. for Med. Educ. & Research v. United States, 131 S. Ct. 704, 711 (2011)85

(quoting Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843 (1984)) (internal

quotation marks omitted).

Med. Ctr. Pharmacy v. Mukasey, 536 F.3d 383, 393 (5th Cir. 2008) (quoting Chevron,86

476 U.S. at 843) (internal quotation marks omitted).

Natl Pork Producers Council v. EPA, 635 F.3d 738, 749 (5th Cir. 2011) (quoting87

Chevron, 476 U.S. at 483) (internal quotation marks omitted).


Id.89

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novo review.

The Supreme Court has not yet conclusively resolved the question of

whether Chevron applies in the context of an agencys determination of its own

statutory jurisdiction, and the circuit courts of appeals have adopted different90

approaches to the issue. Some circuits apply Chevron deference to disputes over

the scope of an agencys jurisdiction, some do not, and some circuits have thus91 92

far avoided taking a position. In this circuit, we apply Chevron to an agencys93

interpretation of its own statutory jurisdiction, and therefore, we will apply the

Chevron framework when determining whether the FCC possessed the statutory

authority to establish the 90- and 150-day time frames.94

See Pruidze v. Holder, 632 F.3d 234, 237 (6th Cir. 2011) (collecting cases and90

observing that the Supreme Court has yet to resolve the debate over whether Chevron applies

to disputes about the scope of an agencys jurisdiction).

See, e.g., Hydro Res., Inc. v. EPA, 608 F.3d 1131, 1145-46 (10th Cir. 2010) (en banc)91

(Of course, courts afford considerable deference to agencies interpreting ambiguities in

statutes that Congress has delegated to their care, . . . including statutory ambiguities

affecting the agencys jurisdiction . . . . (internal citations omitted));P.R. Mar. Shipping Auth.

v. Valley Freight Sys., Inc., 856 F.2d 546, 552 (3d Cir. 1988) (When Congress has not directly

and unambiguously addressed the precise question at issue, a court must accept theinterpretation set forth by the agency so long as it is a reasonable one. . . . This rule of

deference is fully applicable to an agencys interpretation of its own jurisdiction. (internal

citation omitted)).

See, e.g., N. Ill. Steel Supply Co. v. Secy of Labor, 294 F.3d 844, 846-47 (7th Cir.92

2002) (concluding that de novo review is appropriate for questions involving an agencys

determination of its own jurisdiction);Bolton v. Merit Sys. Prot. Bd. , 154 F.3d 1313, 1316 (Fed.

Cir. 1998) (reviewing agencys legal conclusion regarding the scope of its own jurisdiction

without deference to the agencys determination).

See Pruidze, 632 F.3d at 237 (leaving the question unanswered); OConnell v.93

Shalala, 79 F.3d 170, 176 (1st Cir. 1996) (same).

Texas v. United States, 497 F.3d 491, 501 (5th Cir. 2007) (observing that Chevron step94

one applies to challenges to an agencys interpretation of a statute, as well as whether the

statute confers agency jurisdiction over an issue);Tex. Office of Pub. Util. Counsel v. FCC, 183

F.3d 393, 440-46 (5th Cir. 1999) (applying Chevron to a question concerning the scope of the

FCCs statutory authority to provide universal service support for schools, libraries, and rural

health-care providers); First Gibraltar Bank, FSB v. Morales, 42 F.3d 895, 901 (5th Cir. 1995)

(per curiam) ([T]his circuit has accorded deference to an agencys determination of its own

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B

At the first step of a Chevron analysis, we must determine whether

Congress has directly spoken in a manner that reveals its expressed intent.95

We use the traditional tools of statutory construction to determine whether

Congress has spoken to the precise point at issue, and [t]here is no better or96

more authoritative expression of congressional intent than the statutory text.97

We determine the plainness or ambiguity of the statutory text by referencing

the language itself, the specific context in which that language is used, and the

broader context of the statute as a whole. [W]here the statutory language is98

unambiguous and the statutory scheme is coherent and consistent, the language

of the statute is usually where we end. If the statutory language is susceptible99

to more than one reasonable interpretation, however, it is ambiguous and we

must proceed to Chevron step two.100

As noted above, the FCC argues that its general authority to make rules

and regulations to carry out the Communications Act includes the power to

implement 332(c)(7)(B)(ii) and (v). One express grant is found at 47 U.S.C.

statutory authority.).

Med. Ctr. Pharmacy v. Mukasey, 536 F.3d 383, 394 (5th Cir. 2008) (quoting Chevron,95

476 U.S. at 843) (internal quotation marks omitted).

Natl Pork Producers Council v. EPA, 635 F.3d 738, 749 (5th Cir. 2011) (citing Tex.96

Sav. & Cmty. Bankers Assn v. Fed. Hous. Bd., 201 F.3d 551, 554 (5th Cir. 2000)).

Med. Ctr. Pharm., 536 F.3d at 394.97

Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).98

Med. Ctr. Pharm., 536 F.3d at 394 (quoting Robinson, 519 U.S. at 340).99

See United States v. Hoang, 636 F.3d 677, 682 (5th Cir. 2011) (It is familiar learning100

that [a] statute is ambiguous if it is susceptible to more than one reasonable interpretation

or more than one accepted meaning. (quoting In re Condor Ins. Ltd., 601 F.3d 319, 321 (5th

Cir. 2010)); Comacho v. Tex. Workforce Commn, 408 F.3d 229, 234 (5th Cir. 2005) (Generally,

a statute is ambiguous if it is capable of being understood in two or more possible senses or

ways. (quoting Chickasaw Nation v. United States, 534 U.S. 84, 90 (2001)).

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201(b), which provides that [t]he Commission may prescribe such rules and

regulations as may be necessary in the public interest to carry out the provisions

of this chapter. The Supreme Court has held the FCCs rulemaking authority

under 201(b) extends to provisions added by the TCA because Congress passed

the TCA as an amendment to the Communications Act. Congress retains the101

ability to restrict its grant of power to an agency, though, and the cities argue

Congress included language in the TCA precluding the FCC from using the

Communication Acts grant of general authority to implement 332(c)(7)(B)s

limitations. The cities point to 332(c)(7)(A), which provides: Except as102

provided in this paragraph, nothing in this chapter shall limit or affect the

authority of a State or local government or instrumentality thereof over

decisions regarding the placement, construction, and modification of personal

wireless service facilities. The cities also claim that 332(c)(7)(B)(v)s vesting

of jurisdiction in the courts to review disputes arising under 332(c)(7)(B)(ii)

evinces Congresss intent to remove jurisdiction over 332(c)(7)(B)(ii) from the

FCC.

The question we confront under Chevron is whether these provisionsunambiguously indicate Congresss intent to preclude the FCC from

implementing 332(c)(7)(B)(ii) and (v). If they do, the FCC lacked statutory

authority to issue the 90- and 150-day time frames. If the provisions are

ambiguous, however, we must defer to the FCCs interpretationan

interpretation under which the FCC possessed authority to issue the 90- and

AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 378 (1999) (We think that the grant101

in 201(b) means what it says: The FCC has rulemaking authority to carry out the provisions

of this Act, which include 251 and 252, added by the Telecommunications Act of 1996.);

see also AT&T Commcns v. BellSouth Telecomms. Inc., 238 F.3d 636, 641 (5th Cir. 2001).

Cf. First Gibraltar Bank, FSB v. Morales, 42 F.3d 895, 901 (5th Cir. 1995) (per102

curiam) (As part of its legislative powers, Congress designates the scope of agency authority,

and if Congress so chooses, it can subsequently restrict or limit that delegation of power to the

agency.).

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150-day time framesso long as the FCCs interpretation represents a

reasonable construction of their terms. For the following reasons, we conclude

neither 332(c)(7)(A) nor 332(c)(7)(B)(v) unambiguously preclude the FCC

from establishing the 90- and 150-day time frames.

First, we note that 332(c)(7)(A), when it states [e]xcept as provided in

this paragraph, removes 332(c)(7)(B)s limitations from its reach and

recognizes those limitations as legitimate intrusions into state and local

governments traditional authority over zoning decisions. The fundamental

question then, is whether 332(c)(7)(A), in restricting the TCAs limitations on

state or local zoning authority to only those contained in 332(c)(7)(B), also

precludes the FCC from implementing those limitations by relying on its general

rulemaking authority under the Communications Act. This is a question to

which 332(c)(7)(A) itself does not provide a clear answer. Section 332(c)(7)(A)

states Congresss desire to make 332(c)(7)(B)s limitations the only limitations

confronting state and local governments in the exercise of their zoning authority

over the placement of wireless services facilities, and thus certainly prohibits the

FCC from imposing restrictions or limitations that cannot be tied to thelanguage of 332(c)(7)(B). Whether the FCC retains the power of implementing

those limitations, however, remains unresolved.

Congresss silence on this point is not without implication. Had Congress

intended to insulate 332(c)(7)(B)s limitations from the FCCs jurisdiction, one

would expect it to have done so explicitly because Congress surely recognized

that it was legislating against the background of the Communications Acts

general grant of rulemaking authority to the FCC. The FCCs general grant of

authority would ordinarily extend to amendments to the Communications Act,

like 332(c)(7)(B)s limitations, in the absence of specific statutory limitations

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on that authority, and Congress certainly knew how to specifically restrict the103

FCCs general authority over the Communications Act as it clearly restricted the

FCCs ability to use that authority in other contexts. Here, however, Congress104

did not clearly remove the FCCs ability to implement the limitations set forth

in 332(c)(7)(B), and this Congressional silence leaves 332(c)(7)(A)s effect on

the FCCs authority to administer 332(c)(7)(B)s limitations ambiguous.

Moreover, the cities reliance on 332(c)(7)(B)(v) does not resolve

332(c)(7)(A)s ambiguity. The cities contend that, by establishing jurisdiction

in the courts over specific disputes arising under 332(c)(7)(B)(ii), Congress

indicated its intent to remove that provision from the scope of the FCCs general

authority to administer the Communications Act. The cities read too much into

332(c)(7)(B)(v)s terms, however. Although 332(c)(7)(B)(v) does clearly

establish jurisdiction in the courts over disputes arising under 332(c)(7)(B)(ii),

the provision does not address the FCCs power to administer 332(c)(7)(B)(ii)

in contexts other than those involving a specific dispute between a state or local

government and persons affected by the governments failure to act.

Accordingly, one could read 332(c)(7) as a whole as establishing a frameworkin which a wireless service provider must seek a remedy for a state or local

governments unreasonable delay in ruling on a wireless siting application in a

court of competent jurisdiction while simultaneously allowing the FCC to issue

an interpretation of 332(c)(7)(B)(ii) that would guide courts determinations of

disputes under that provision.

The Sixth Circuit recently addressed a similar statutory scheme in

See AT&T Corp., 525 U.S. at 378.103

See, e.g., 47 U.S.C. 152(b) (listing specific exceptions to the FCCs authority over104

the Communications Act); La. Pub. Serv. Commn v. FCC, 476 U.S. 355, 369-76 (1986) (holding

152(b) denies the FCC the power to preempt state regulation of depreciation for intrastate

ratemaking purposes).

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Alliance for Community Media v. FCC. That decision involved provisions of105

the Communications Act that delegated to municipalities, in the form of local

franchising authorities (LFAs), the power to award cable franchises. The106

provisions at issue further provided that an LFA could not unreasonably refuse

to award an additional competitive franchise, and endowed potential107

entrants with a judicial remedy by entitling them to commence an action in a

federal or state court within 120 days after receiving a final, adverse decision

from an LFA. After the FCC promulgated rules delineating situations that108

would constitute an unreasonable refusal to award a cable franchise, petitioners

claimed (among other arguments) that the statutes identification of courts as

the forum for aggrieved cable operators to obtain relief deprived the FCC of

statutory authority to exercise its rulemaking power. The court rejected that

argument, holding that the availability of a judicial remedy for unreasonable

denials of competitive franchise applications does not foreclose the agencys

rulemaking authority over section 621(a)(1). The decision in Alliance for109

Community Media supports the conclusion that there is nothing inherently

unreasonable about reading 332(c)(7) as preserving the FCCs ability toimplement 332(c)(7)(B)(ii) while providing for judicial review of disputes under

332(c)(7)(B)(ii) in the courts. Section 332(c)(7)(B)(v)s vesting in the courts110

529 F.3d 763 (6th Cir. 2008).105

Id. at 768.106

Id.107

Id.108

Id. at 775.109

Id. at 776 ([W]e believe that courts can grant deference to the Order while110

maintaining their Congressionally-granted authority to make factual determinations and

provide relief to aggrieved cable operators.). Cf. AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366,

385 (1999) (While it is true that the 1996 Act entrusts state commissions with the job of

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of jurisdiction over disputes arising under 332(c)(7)(B)(ii) thus does not

unambiguously preclude the FCC from taking the action at issue in this case.

In sum, we conclude that 332(c)(7) is ambiguous with respect to the

FCCs authority to establish the 90- and 150-day time frames. Although the

statute clearly bars the FCC from using its general rulemaking powers under

the Communications Act to create additional limitations on state and local

governments beyond those the statute provides in 332(c)(7)(B), the statute is

silent on the question of whether the FCC can use its general authority under

the Communications Act to implement 332(c)(7)(B)s limitations. We proceed

to Chevron step two.

C

Once we determine that a statute is silent or ambiguous with respect to

a question at issue, we must defer to the agencys resolution of the question if

the agencys interpretation is based on a permissible construction of the

statute. In addition to arguing that the plain text of 332(c)(7) precludes the111

FCC from establishing the 90- and 150-day time frames, the cities make a

number of other arguments that seemingly attack the permissibility of anyconstruction of the statute that would allow the FCC to exercise the power that

it did in this case. First, the cities claim 332(c)(7)s legislative history supports

their proposed reading of 332(c)(7) and not the FCCs. Second, they suggest

that a construction of 332(c)(7) that would grant the FCC authority to

implement 332(c)(7)(B)s limitations on state and local government would

conflict with the principle that if Congress intends to preempt a power

approving interconnection agreements and granting exemptions to rural LECs, these

assignments . . . do not logically preclude the [FCCs] issuance of rules to guide the state-

commission judgments. (internal citations omitted)).

See, e.g., Tex. Clinical Labs, Inc. v. Sebelius, 612 F.3d 771, 775 (5th Cir. 2010)111

(quoting Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-43 (1984)).

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traditionally exercised by a state or local government, it must make its intention

to do so unmistakably clear in the language of the statute. Finally, they112

suggest the FCC itself had long recognized that it lacked jurisdiction with

respect to 332(c)(7)(B)s limitations. These arguments are not persuasive.

Regarding the legislative history surrounding the passage of 332(c)(7),

the cities note Congress considered but ultimately did not enact a version of the

statute that directed the FCC to prescribe and make effective a policy regarding

State and local regulation of the placement, construction, modification, or

operation of facilities for the provision of commercial mobile services. The113

cities also point to the Conference Report from the passage of the TCA, which

provides in pertinent part:

The conference agreement creates a new section 704 which prevents

Commission preemption of local and State land use decisions and

preserves the authority of State and local governments over zoning

and land use matters except in the limited circumstances set forth

in the conference agreement. The conference agreement also

provides a mechanism for judicial relief from zoning decisions that

fail to comply with the provisions of this section. It is the intent of

the conferees that other than under section 332(c)(7)(B)(iv) of the

Communications Act of 1934 as amended by this Act and section704 of the Telecommunications Act of 1996 the courts shall have

exclusive jurisdiction over all other disputes arising under this

section. Any pending Commission rulemaking concerning the

preemption of local zoning authority over the placement,

construction or modification of CMS facilities should be

terminated.114

The cities argue the FCCs construction of 332(c)(7) contravenes this legislative

history. The implication, then, is that this legislative history clarifies any

City of Dallas, Tex. v. FCC, 165 F.3d 341, 347-48 (5th Cir. 1999) (quoting Gregory112

v. Ashcroft, 501 U.S. 452, 460 (1991)) (internal quotation marks and citations omitted).

H.R. REP.NO.104-204, pt. 1, at 25 (1995).113

H.R.REP.NO.104-458, at 207-08 (1996) (Conf. Rep.).114

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ambiguity in 332(c)(7)s plain text and indicates Congresss intent to remove

from the FCC the authority to implement 332(c)(7)(B)(ii) and (v).

This argument fails, however, because the legislative history itself is

ambiguous. Although the legislative history surrounding the passage of

332(c)(7) indicates Congress intended the provision to remove from the FCC

the authority to make new rules limiting or affecting state and local government

authority over wireless zoning decisions, the legislative history, like the statute

itself, is silent as to the FCCs ability to use its general rulemaking power to

provide guidance with respect to the limitations 332(c)(7)(B) expressly imposes

on state and local governments. In other words, the legislative history does no

more than indicate Congresss intent to bar the FCC from imposing additional

limitations on state and local government authority. It does not indicate a clear

intent to bar FCC implementation of the limitations already expressly provided

for in the statute. Under these circumstances, we cannot conclude that the

legislative history is so clear and compelling . . . that it leaves no doubt as to

Congresss intent.115

The cities also suggest that interpreting 332(c)(7) in a way that wouldallow the FCC to implement 332(c)(7)(B)(ii) and (v) conflicts with the principle

that if Congress intends to preempt a power traditionally exercised by a state

or local government, it must make its intention to do so unmistakably clear in

the language of the statute. The cities assert that the FCCs new 90- and 150-116

day time frames displace state laws establishing different time frames.

The cities argument is unconvincing because those state laws are already

preempted, at least to the extent that the state time limits violate

332(c)(7)(B)(ii)s requirement that state and local authorities rule on zoning

Med. Ctr. Pharmacy v. Mukasey, 536 F.3d 383, 396 (5th Cir. 2008).115

City of Dallas, Tex., 165 F.3d at 347-48 (quoting Gregory, 501 U.S. at 460) (internal116

quotation marks and citations omitted).

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requests in a reasonable amount of time. That section already acts to preempt

these state laws by creating a federal time frame defined through reference to

reasonableness. No one could plausibly argue, for example, that if a state passed

a law stating that local governments had ten years to rule on such applications,

332(c)(7)(B)(ii) would not have the effect of preempting that law insofar as an

aggrieved party would likely be able to petition a court for relief under

332(c)(7)(B)(v) well before the expiration of the states time frame. FCC action

interpreting what amount of time is reasonable under 332(c)(7)(B)(ii) only

further refines the extent of the preemption that Congress has already explicitly

provided. We thus see no conflict between the FCCs ability to interpret

332(c)(7)(B)s limitations on state and local government authority and the

principle that Congress must unmistakably indicate its intent to preempt a

power traditionally exercised by state or local governments because Congress

has indicated a preference for federal preemption of state and local laws

governing the time frames for wireless zoning decisions.117

Finally, the cities argue that [u]ntil its dramatic shift in the [Declaratory

Ruling], the FCC had long recognized the statutory limits on its jurisdictionunder Section 332(c)(7). The cities claim the FCCs exercise of authority to

interpret 332(c)(7)(B)(ii) and (v) conflicts with the FCCs own longstanding

interpretation of its jurisdiction. The cities note that the Supreme Court, in New

Process Steel, L.P. v. NLRB , made the following observation when interpreting118

the statute establishing the NLRBs quorum requirements: That our

interpretation of the delegation provision is consistent with the Boards

longstanding practice is persuasive evidence that it is the correct one,

Cf. AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 379 n.6 (1999) (This is, at bottom,117

a debate not about whether the States will be allowed to do their own thing, but about whether

it will be the FCC or the federal courts that draw the lines to which they must hew.).

130 S. Ct. 2635 (2010).118

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notwithstanding the Boards more recent view.119

We are not persuaded by this argument in this case, however, because the

FCC interpretations to which the cities direct us do not adopt the position that

the FCC lacks authority to implement 332(c)(7)(B)s limitations. For example,

in In re Facilitating the Provision of Spectrum-Based Services to Rural Areas and

Promoting Opportunities for Rural Telephone Companies to Provide Spectrum-

Based Services , the FCC did observe that Section 332(c)(7) generally preserves

local authority over land use decisions, and limits the Commissions authority

in this area, but a review of that order makes clear that the limitation to120

which the FCC was referring was 332(c)(7)(B)(v)s grant of exclusive

jurisdiction to the courts over most disputes arising under 332(c)(7)(B). The121

FCCs order in In re Cingular Wireless L.L.C. and a letter from the chief of the122

FCCs Wireless Telecommunications Bureau similarly contained observations123

on the limits of the FCCs authority to consider petitions challenging specific

state or local government action. As already discussed, that 332(c)(7)(B)(v)

vests exclusive jurisdiction in the courts to consider specific disputes arising

under 332(c)(7)(B) does not limit the FCCs ability to implement 332(c)(7)(B)slimitations. Thus, the FCCs acknowledgment of this limitation hardly suggests

that the FCC also recognized a limit on its authority under 201(b).

D

For the above reasons, we conclude the FCC is entitled to deference with

Id. at 2641-42.119

19 FCC Rcd. 24084 123 (2004).120

Id. at n.368.121

18 FCC Rcd. 13126 21 (2003).122

Letter from Michele C. Farquhar to Mr. Thomas E. Wheeler (Jan. 13, 1997), 1997123

WL 14744.

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respect to its exercise of authority to implement 332(c)(7)(B)(ii) and (v). The

language of 332(c)(7) is silent with respect to the FCCs power to exercise this

authority, and none of the cities arguments convince us that the FCCs

interpretation of its statutory authority is impermissible. The FCC thus did not

lack statutory authority to establish the 90- and 150-day time frames.

VI

We now consider whether the 90- and 150-day time frames themselves also

pass muster under Chevron. The time frames represent the FCCs attempt to

implement 332(c)(7)(B)(ii) and (v). Section 332(c)(7)(B)(ii) requires state and

local governments to act on any request for authorization to place, construct, or

modify personal wireless service facilities within a reasonable period of time

after the request is duly filed with such government or instrumentality, taking

into account the nature and scope of such request. Section 332(c)(7)(B)(v)

provides that any person adversely affected by a state or local governments

failure to act may within 30 days after such . . . failure to act, commence an

action in any court of competent jurisdiction. In the Declaratory Ruling, the

FCC defined a reasonable period of time for purposes of 332(c)(7)(B)(ii) as,presumptively, 90 days to process personal wireless service facility siting

applications requesting collocations, and . . . 150 days to process all other

applications. The FCC also concluded that a lack of decision within these124

time frames would constitute a failure to act that would be actionable under

332(c)(7)(B)(v).125

A

As usual, we begin with the statutory text. The FCC claims that

332(c)(7)(B)(ii) and 332(c)(7)(B)(v) are ambiguous and subject to FCC

24 FCC Rcd. 13994 32 (2009).124

Id.125

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local government action by creating a heightened threat of litigation; (3) impose

new application completeness requirements; (4) create a national standard for

what constitutes a reasonable period of time; and (5) contravene Congressional

intent by giving preferential treatment to the wireless industry in the processing

of zoning applications. After considering these arguments, however, we conclude

that the FCCs 90- and 150-day time frames are based on a permissible

construction of 332(c)(7)(B)(ii) and (v) and are thus entitled to Chevron

deference.

1

First, the cities observe that courts addressing actions brought pursuant

to 332(c)(7)(B)(v) have placed the burden on the plaintiff to prove that a state

or local government has failed to comply with one of 332(c)(7)(B)s

requirements. They claim the FCCs time frames reverse this burden by128

creating a presumption that a state or local government that fails to act on a

zoning application within the applicable 90- or 150-day time frame has failed

to act under 332(c)(7)(B)(v). The result, they argue, is that the presumption

against preemption is replaced with a presumptionfor preemption because theburden of proof rests on state and local governments to prove the reasonableness

of their delay in cases in which they have failed to act within the time frames.

We disagree with this characterization of the effect of the FCCs

presumption because it misstates the typical effect of a presumption in a civil

proceeding. Federal Rule of Evidence 301, for example, describes the effect of

presumptions in civil proceedings in federal court. It provides:

In a civil case, unless a federal statute or these rules provide

otherwise, the party against whom a presumption is directed has

See, e.g., U.S. Cellular Corp. v. City of Wichita Falls, Tex., 364 F.3d 250, 256 (5th128

Cir. 2004) (The plaintiff carries the burden of proving that no substantial evidence supports

the local governments decision [in an action challenging the decision under

332(c)(7)(B)(iii)].).

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the burden of producing evidence to rebut the presumption. But this

rule does not shift the burden of persuasion, which remains on the

party who had it originally.129

We have held that Rule

arlington san antonio v fcc fifth circuit decision 10-60039-cv0

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